Applicants can prepay to use the overnight delivery or courier service of their choice to receive certain documents, such as approval and denial notices, requests for evidence, and most travel documents.

The Department of State’s Visa Bulletin for September 2014 noted that the use of potentially “otherwise unused” employment visa numbers prescribed by § 202(a)(5) of the Immigration and Nationality Act (INA) has allowed the India employment-based second preference cut-off date to advance very rapidly in recent months. The Visa Bulletin warned, however, that continued forward movement of this cut-off date during the upcoming months cannot be guaranteed, and said that no assumptions should be made until the dates are formally announced. Once there is a significant increase in India employment second preference demand, it will be necessary for DOS to retrogress the cut-off date, “possibly as early as November,” to hold number use within the fiscal year 2015 annual limit, the agency said.

The Visa Bulletin for September also notes that DOS has determined the numerical limits for fiscal year 2014. The Worldwide employment-based preference limit is 150,241; the family-sponsored preference limit is 226,000; and the per-country limit is 26,337. The dependent area limit is 7,525.

The Department of State (DOS) announced that it has made “significant progress” in bringing back online the Consular Consolidated Database (CCD), used to print and approve visas and passports. The system had crashed in July 2014 and has continued to experience outages, resulting in processing backlogs. DOS said it has caught up with issuances for most of the worldwide backlog of nonimmigrant visa cases and is working to bring the CCD back to full operational capacity. “We continue to prioritize immigrant visas, adoption cases, and emergency nonimmigrant visa cases. We are printing visas for these cases and all cases with very few delays,” a DOS statement noted. For information on specific cases, the agency advises checking with the embassy or consulate where the person will apply or has scheduled an interview.

DOS noted that the problems started shortly after a software update on July 20, 2014, although the agency has not been able to identify a “root cause.” DOS said current efforts are focused on bringing the system back to normal operations. Once that has been accomplished, DOS will investigate the cause, and the agency also has been working with Oracle and Microsoft to implement system changes aimed at optimizing performance and addressing ongoing issues. DOS is also bringing additional servers online to increase capacity and response time. DOS noted that it has experienced minor outages in the past, but not of this magnitude.

The agency says visa applicants should “expect delays as we process pending cases,” but that it remains able “to quickly process emergency cases to completion.” DOS estimates that visa issuances may be delayed 10 to 14 days until the system is restored to full functionality and pending applications are printed.

DOS says it understands the importance to international students and exchange visitors, their families, and their U.S. host institutions of timely visa issuance to facilitate travel and to ensure that all students and exchange visitors may begin their programs on time. “We are committed to issuing visas to all qualified students and exchange visitors. Student and exchange visitor visa applicants should submit their applications well in advance of expected travel dates. We will make every effort to ensure timely visa issuance,” DOS said. The agency added that in situations where a student won’t be able to arrive at school on time, “[s]tudents should contact their educational institution’s Designated School Official (F and M visas) or designated U.S. sponsor’s Responsible Officer (J visas) and discuss with them what arrangements they can provide for you to begin your program after the start date on your Form I-20 (F and M visas) or Form DS 2019 (J visas).”

Regarding the diversity visa (DV) program, the agency noted that immigrant visa processing, including diversity visas, “continues and remains a high priority. The Department expects to have used all numbers for DV-2014 when the program year ends on September 30, 2014.”

Some individuals would like to have their passports returned before their U.S. visas are printed. DOS said it is working with posts around the world to develop procedures to manage these requests. Each embassy and consulate will post contact information on its website for applicants with questions about the status of their cases.

DOS noted that those traveling under the Visa Waiver Program, and those whose previously issued visas remain valid, are not affected. DOS routinely advises visa applicants to make appointments well in advance of planned travel, and not to book travel until they have their printed visas in hand.

3. OSC Advises on How to Proceed After Over-Documenting Employees

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a request for guidance on how to proceed after discovering that a company had accepted more documentation than necessary for Form I-9 employment verification purposes in a few cases.

OSC noted that it is unaware of any publicly available guidance issued by any agency regarding steps an employer should take if it accepts too many documents during the I-9 process. However, OSC pointed out that an employer may violate the Immigration and Nationality Act if it requests more or different documents than required, or rejects “reasonably genuine-looking documents” on the basis of citizenship or immigration status or on the basis of national origin during the I-9 process. OSC also noted that although an employer should correct its practices upon learning that it may have violated the antidiscrimination provision of the INA, an employee who believes that he or she was the victim of discriminatory I-9 practices has up to 180 days from the date of the practice to file a charge with the OSC. OSC advised the inquiring employer to see http://www.justice.gov/crt/about/osc or call its toll-free employer hotline at 1-800-255-8155 to learn about resources available to assist human resources staff in complying with the provision in the future, including “free webinar training by our office or distribution of educational materials to your staff.” The OSC noted that it cannot provide an advisory opinion on any specific case or set of facts.

4. USCIS Says Applicants Can Receive Certain Docs by Delivery Service of Their Choice

S. Citizenship and Immigration Services (USCIS) announced that applicants can prepay to use the overnight delivery or courier service of their choice to receive certain documents, such as approval and denial notices, requests for evidence, and most travel documents.

To ensure that overnight delivery requests are not delayed, USCIS advised:

Including a prepaid air bill when submitting an application, petition, or response to a request for evidence. “The best way to avoid delivery errors is to provide a prepaid shipping label obtained directly from the delivery service. This will avoid the need to write in an account number,” USCIS said. The sender’s name should be entered in both the “to” and “from” fields on the air bill.

Never listing USCIS as the sender and not marking “bill to sender.”

Paying all delivery costs in advance and including the prepaid air bill with the submission.

If the delivery costs are not paid in full, USCIS will send the documents by regular U.S. mail.

On July 11, 2014, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum providing guidance on the adjudication of H-1B petitions for nursing positions. The memo assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation. The memo states that it supersedes any prior guidance on the subject and is binding on all USCIS employees unless specifically exempted. USCIS noted that about 12 years have passed since USCIS issued guidance on determining whether a nursing position is a specialty occupation. USCIS decided it was time to update this guidance.

As background, the memo notes that the H-1B visa classification allows a U.S. employer to petition for a temporary worker in a specialty occupation. Most registered nurse (RN) positions do not qualify as specialty occupations because they do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent) as the minimum for entry into those positions. In some situations, however, a petitioner may be able to show that a nursing position qualifies as a specialty occupation, the memo states. For example, certain advanced practice registered nurse (APRN) positions normally require a U.S. bachelor’s or higher degree in a specialty as the minimum for entry. The updated guidance notes that the private sector “is increasingly showing a preference for more highly educated nurses.” Among other influences, the American Nurses Credentialing Center’s (ANCC) Magnet Recognition Program recognizes health-care organizations that advance nursing excellence and leadership. Achieving Magnet status indicates that an institution’s nursing workforce has attained a number of high standards, with an emphasis on bachelor’s degrees.

The memo lists some of the nursing positions that may qualify as specialty occupations. The memo notes that having a bachelor’s degree is not, by itself, sufficient to qualify for H-1B classification. A critical factor, the memo states, is whether a bachelor’s or higher degree is normally required for the position. A beneficiary’s credentials to perform a particular job are relevant only when the job is found to qualify as a specialty occupation. USCIS noted that it must “follow long-standing legal standards and determine whether the proffered position qualifies as a specialty occupation, and whether a beneficiary is qualified for the position at the time the nonimmigrant visa petition is filed.”

Among other things, the memo notes that if a state requires at least a bachelor’s degree in nursing to obtain a nursing license, a registered nurse position in that state would generally be considered a specialty occupation. No state currently requires a bachelor’s degree in nursing for licensure, the memo notes.

The memo outlines the evidence needed to establish that a position qualifies as a specialty occupation under the “preponderance of the evidence” standard. Among other things, documentation submitted by petitioners often includes the nature of the petitioner’s business; industry practices; a detailed description of the duties to be performed; advanced certification requirements; ANCC “Magnet Recognized” status; clinical experience requirements; training in the specialty requirements; and wage rate relative to others within the occupation. USCIS recognizes the Department of Labor’s Occupational Outlook Handbook (OOH) as an authoritative source on duties and educational requirements. However, the memo notes that it is not always determinative and other authoritative and/or persuasive sources provided by the petitioner will also be considered.

6. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

7. Klasko News

Upcoming Speaking Engagements

H. Ronald Klasko (Ron) will be in China from September 8-17, 2014 as a delegate for the Association to Invest In the USA (IIUSA) 2014 trade mission to CIFIT – the 18th annual China International Fair for Investment & Trade in Xiamen, China. Moreover, Ron will also be a keynote speaker at the 2014 Overseas Investment & International Wealth Management Forum in Beijing on September 13 where he will discuss visa retrogression, impact for Chinese investors and future of the EB-5 program. He will also be speaking at other programs relating to investment as well. For more information, write to Ron at rklasko@klaskolaw.com.

Rohit Kapuria will be speaking at “The EB-5 Summit for Attorneys and Developers” in Chicago on September 12, 2014, a program sponsored by ILW.com. Rohit will discuss key considerations for developers for the 526 and 829 when putting together a successful regional center. For more information on this event or to register, click here.

On September 19, Elise A. Fialkowski will be speaking on O1/EB-1 and A&B/NIW at PBI’s Immigration Law Forum 2014 in Philadelphia. Among the key issues discussed will be O-1 criteria as against the EB-1A criteria; how much is “enough” for the O-1/EB-1 & EB-2 criteria; NIW criteria and issues; and premium processing or no premium processing.

On Tuesday, October 7, Ron will discuss immigration options with first and second year students at the Wharton Business School of the University of Pennsylvania.

Ron will be at the Harvard Business School on October 8 and 9 where he will be speaking with students about employment options, various H-1B visa options, E, L-1, O-1, H-3, and other permanent resident options including EB-5s.

Elise will be speaking at the 2014 AILA Fundamentals of Immigration Law Conference from October 16-17, 2014 in New Orleans, LA. Elise will be discussion leader for the session “The Road to Naturalization and Citizenship” and will discuss eligibility criteria, interview and examination preparation, post-denial options, and derivative citizenship, among other topics.

William A. Stock (Bill) will be speaking at a seminar hosted by the Biomedical Postdoctoral Programs of the University of Pennsylvania on October 28, 2014. Bill will discuss permanent residency, non-immigrant options, immigrant intent, and timing, adjustment of status and maintenance of status, among other topics.

Recent Speaking Engagements

On August 22, Ron and Daniel B. Lundy (Dan) spoke at the 2014 AILA EB-5 Investors & Regional Centers CLE Conference in Chicago. Ron participated in “Protecting Your Practice: Ethical Issues & Minimizing Risk,” a panel session which walked through a sample engagement letter and addressed key ethical concerns encountered in EB-5 practice. Dan served as discussion leader for “Securities Law Compliance & Deterring Fraud” a session relating to the intersection of securities and immigration law in the EB-5 program. For more information on EB-5, visit us at www.eb5immigration.com or contact the speakers.